Ex Parte Tyrer

Patent Trial and Appeal Board

Sep 25, 2017

13387265 (P.T.A.B. Sep. 25, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/387,265 01/26/2012 John Tyrer 02070003US 8341
62008 7590 09/27/2017
MAIER & MAIER, PLLC
345 South Patrick Street
ALEXANDRIA, VA 22314
EXAMINER
SZAFRAN, BRIE ANNA TARAH LARELL
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
09/27/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patent @ maierandmaier. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN TYRER
Appeal 2016-004206
Application 13/387,2651
Technology Center 3700
Before THOMAS F. SMEGAL, NATHAN A. ENGELS, and
ERIC C. JESCHKE, Administrative Patent Judges.
ENGELS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1—3 and 14—20. No other claims are pending. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies Laser Optical Engineering Limited as the real party in
interest. Br. 2.
Appeal 2016-004206
Application 13/387,265
ILLUSTRATIVE CLAIM
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A breast support arrangement comprising:
a first breast cup connected with a first wing portion;
a second breast cup connected with a second wing portion;
a first single and continuous connecting member coupling
the first breast cup and the first wing portion to one another; and
a second single and continuous connecting member
coupling the second breast cup and the second wing portion to
one another;
the first and second connecting members being cooperable
with one another to couple the first and second wing portions to
one another;
at least one of the first and second connecting members
being or including an elastic member to, in use, draw the first
breast cup towards the first wing portion, the second breast cup
towards the second wing portion to provide support for a
wearer’s breast, and the first and second wing portions towards
one another to provide security;
each wing portion including a wing guide to couple the
corresponding connecting member to the wing portion and guide
the movement of the respective connecting member relative to
the wing portion; and
wherein each wing guide includes a guide body which
defines a rigid guide portion to receive the corresponding
connecting member and maintain a relative orientation of a first
and second portion of each of the connecting members so as to
maintain a predetermined distribution of tensile forces between
support and security, and each connecting member is able to
move in use relative to the corresponding wing guide and
associated wing portion to allow a relative length of the first and
second portions of each of the connecting members to change,
and thereby enable the breast support arrangement to
dynamically adjust a configuration to accommodate changes in a
wearer’s body position and maintain the manner in which it
prioritizes between support and security.
2
Appeal 2016-004206
Application 13/387,265
THE REJECTIONS
Claims 1—3 and 14—20 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Kemp (US 2,156,478; May 2, 1939).
Claims 1 and 16 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Plehn (US 2,363,017; Nov. 21, 1944).
ANALYSIS
Claim 1 is an apparatus claim and is the only independent claim on
Appeal. For each structure recited in claim 1, the Examiner’s rejections
identify corresponding structures in Kemp (Final Act. 7—9) and
corresponding structures in Plehn (Final Act. 12—14).
Appellant does not specifically identify any structural limitations of
claim 1 as allegedly missing from either of Kemp or Plehn. Instead,
Appellant argues “the claimed invention is able to maintain the manner in
which the breast support arrangement prioritizes between support and
security” (Br. 5) and argues that the identified structures in Kemp and Plehn
do not provide support and security as claimed (Br. 4—6).
Addressing Kemp, Appellant argues “shoulder straps (f, g) of the
breast support arrangement shown in Kemp have no influence on the ability
of the breast support arrangement to provide security functionality” and “the
ability of the shoulder straps (f, g) to provide support is completely
independent of the ability of the elastic extension (c, cl) to provide the
aforementioned security.” Br. 5. Further, Appellant argues “the relative
extent to which the Kemp breast support arrangement provides security and
support varies such that the Kemp breast support arrangement cannot
3
Appeal 2016-004206
Application 13/387,265
maintain the manner in which it prioritizes between security and support as a
wearer’s body position changes.” Br. 5.
Addressing Plehn, Appellant similarly argues “[t]he manner in which
the Plehn breast support arrangement provides support is . . . independent
from the manner in which it provides security” such that Plehn’s device
“cannot maintain the manner in which it prioritizes between support and
security as a wearer’s body position changes.” Br. 6.
Claim 1 recites an apparatus, and “apparatus claims cover what a
device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb
Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990) (emphasis added). As noted
above, the Examiner provides detailed findings and explanations to establish
that both Kemp and Plehn disclose each structural limitation recited in claim
1. See Final Act. 7—12 (addressing Kemp); Final Act. 12—14 (addressing
Plehn); see also In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997)
(explaining that where an examiner identifies structures capable of
performing a claimed function, the burden shifts to the applicant to prove
otherwise). In fact, responding to each of Appellant’s arguments, the
Examiner provides detailed findings and explanations to establish that Kemp
and Plehn disclose both the structural and functional limitations of claim 1.
Ans. 2-14.
Appellant does not rebut the Examiner’s findings regarding the
structures recited in claim 1, nor does Appellant respond to the Examiner’s
Answer or otherwise rebut the Examiner’s findings regarding the functional
claim terms. We have considered the Examiner’s rejections in light of each
of Appellant’s arguments and the evidence of record, and we disagree with
Appellant that the Examiner erred in the rejection of claim 1. We agree with
4
Appeal 2016-004206
Application 13/387,265
the Examiner that both Kemp and Plehn disclose each limitation of claim 1,
and we sustain the rejections of claim 1, as well as the rejections of claims 2,
3, and 14—20 for which Appellant relies on the arguments presented for
claim 1. Further, we adopt as our own the Examiner’s findings, conclusions,
and reasons.
DECISION
For the above reasons, we affirm the Examiner’s rejection of claims
1—3 and 14—20 under 35 U.S.C. § 102(b) as anticipated by Kemp, and we
affirm the Examiner’s rejection of claims 1 and 16 under 35 U.S.C. § 102(b)
as anticipated by Plehn.
No time period for taking any subsequent action in connection with
this appeal maybe extended. 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
5